JUDGMENT Sudhir Narain, J.
1. This writ petition is directed against the order of the Additional Commissioner. Jhansi Division, Jhansi, dated 30.3.1990 allowing the appeal of the plaintiff-respondent and decreeing the suit and the order of the Board of Revenue dated 30.6.1992, affirming the said order in second appeal.
2. The following pedigree is admitted to the parties :
Govinda | __________________________________________________________________________ | | Bhagirathi Ahir Gokul Ahir (P) Widow Smt. Rani Dulaiya (died in 1984) | | Smt. Chukharia (R. 3) (daughter) = Ram Kishun (husband)
3. Bhagirathi was tenure-holder of the land in dispute. He died 40 years ago and was succeeded by his widow Smt. Rani Dulaiya. She died in the year 1984. After death of Rani Dulaiya, her daughter Smt. Chukharia, respondent No. 3, filed suit for declaration under Section 229B of U. P. Zamindari Abolition and Land Reforms Act claiming that she is the sole tenure-holder of the land in dispute as her father Bhagirathi was the sole tenure-holder in possession of the land in dispute who died 40 years ago. The disputed plots were inherited by Smt. Rani Dulaiya his widow and mother of the plaintiff. Gokul, the petitioner was wrongly recorded as co-tenure holder of the disputed land with Smt. Rani Dulaiya. Neither the plaintiff nor Smt. Rani Dulaiya had knowledge regarding the entry in favour of the petitioner. She came to know about the aforesaid entry in 1392-F after death of her mother. She claimed herself as sole tenure-holder in possession of the land in dispute and prayed that the name of Gokul (defendant-petitioner) be expunged.
4. The petitioner filed written statement. He claimed himself as co-tenure-holder of the land in dispute on the allegation that after the death of Bhagirathi, Smt. Rani Dulaiya, his widow succeeded him but she was unable to cultivate the land in dispute herself, hence with the consent of the zamindar the petitioner was admitted by Smt. Rani Dulaiya as co-tenure holder. She executed registered Iqrarnama dated 7.7.1947 declaring that she has admitted, the petitioner as co-tenure holder of the land in dispute along with her with the consent of the Zamindar Smt. Sarju Bai through her Mukhtar-E-Aam Babu Ram. He remained in possession over the disputed land as co-tenure holder throughout with Smt. Rani Dulaiya. He was also recorded over the land in dispute since 1355-F as co-tenure holder. Some of the land has been sold by Smt. Chukharia, the plaintiff and at the time of final partition, such area of the land will be adjusted against the share of Smt. Chukharia, the plaintiff.
5. The trial court after considering the evidence on the record came to the conclusion that Smt. Rani Dulaiya had admitted the petitioner as co-tenant and he remained in possession over the land in dispute as co-tenure holder after the registered Iqrarnama dated 7.7.1947 was executed by Smt. Rani Dulaiya. The suit filed by respondent No. 3 was dismissed. She filed appeal before the Additional Commissioner. The Additional Commissioner allowed the appeal on 30.3.1990 and decreed the suit on the finding that the petitioner failed to prove that Babu Ram was Mukhtar-E-Aam of Smt, Sarju Bai-Zamindar, on the date of the execution of Iqrarnama in the year 1947. The petitioner filed second appeal before the Board of Revenue which has been dismissed by respondent No. 1 on 30.6.1992.
6. I have heard Sri Sankatha Rai, learned counsel for the petitioner and Sri G. N. Verma, learned counsel for the contesting respondents.
7. The main thrust of learned counsel for the petitioner is that the petitioner acquired co-tenancy rights by estoppel and acquiescence. Learned counsel for the respondents contended that the petitioner based his case on the basis of the Iqrarnama dated 7.7.1947 alleged to have been executed by Smt. Chukharia and Babu Ram alleged to be Mukhtar-E-Aam of Zamindar Sarju Bai but the said deed having not been proved, the petitioner cannot acquire any right over the land in dispute on the basis of the said deed. It is further contended that the tenancy rights can accrue under the proviso to subsection (21 of Section 33 of the U. P. Tenancy Act only when the permission is granted by the Zamindar in writing. The necessary condition under this proviso is that a person shall not be deemed to be a co-tenant notwithstanding that he may have shared in the cultivation of the holding, unless he was a co-tenant from commencement of the tenancy, or has become such by succession or has been specifically recognised as such in writing by the landholder.
8. The petitioner had filed registered Iqrarnama deed dated 7.7.1947 executed by Smt. Rani Dulaiya mentioning therein that she had admitted Gokul-the petitioner as a co-tenant as he had been cultivating the land and was managing the cultivation. Smt. Sarju Bai daughter of Smt. Radha Bai is Zamindar and has given her consent through Pt. Babu Ram son of Pt. Ram Dayal, Mikhtar-E-Aam of Smt. Sarju Bai. This deed itself indicates that the signature of Smt, Rani Dulaiya and the signature of Babu Ram-Mukhtar-E-Aam were attested by Chandu Lal. Patwari. One Ram Kishan was scribe of the document. He appeared as a witness on behalf of the petitioner before the trial court. He stated that the Iqrarnama dated 7th July, 1947 was scribed by him. It was attested by one Beni Prasad and Chandu Lal, Patwari. Smt. Rani Dulaiya and Babu Ram put their signature on this deed. The petitioner also appeared as witness in the case and attested their signatures. He stated that the document was read over and explained to Smt, Rani Dulaiya. This document was executed in his presence.
9. The validity and contents of this document has been challenged by learned-counsel for the respondents on two grounds. Firstly, the document was not duly proved and secondly, there was no evidence to indicate that at the lime of execution of the document, Babu Ram was Mukhtar-E-Aam of Sarju Bai-Zamindar and he had power on behalf of the Zamindar to execute a document giving consent to admit a person as co-tenant over the land of which Smt. Sarju Bai was Zamindar.
10. It is not denied that the deed dated 7.7.1947 was more than 20 years old document at the time of filing of the suit. There is a presumption under Section 90 of the Evidence Act regarding execution of the document. The Full Bench decision of this Court in Ramjas and others v. Surendra Nath and another. AIR 1980 All 385, has held that sub-section (2) of Section 90A of the Evidence Act does not override and nullify Section 90 even if the document more than 20 years old is the basis of the suit or defence or is relied upon in the plaint or written statement. Section 90(2) permits the raising of the presumption in respect of the signature, hand writing, execution and attestation while Section 90 permits the presumption only in respect of the execution. Section 90 deals with documents which are more than 20 years old while Section 90A places no such restrictton and includes also the document from judicial record. Moreover, in the present case the signature of Smt. Rani Dulaiya and Babu Ram Mukhtar-E-Aam on the deed were proved by the petitioner and the scribe Ram Kishan. The petitioner further proved that the deed was executed in his presence. It was read over and explained to Smt. Rani Dulaiya and she had admitted the petitioner as co-tenant. The execution and the contents of the document were fully proved.
11. The proof of the fact as to whether Rabu Ram was Mukhtar-E-Aam of Zamindar Sarju Bai on the date of execution of the deed dated 7.7.1947 has to be examined with reference to the contents of the deed and the statement of Ram Kishan scribe and Gokul-the petitioner. The deed was signed by Babu Ram. Chandu Lal, Patwari had attested the signature of Babu Ram. Babu Ram has signed the deed as Mukhtar-E-Aam. The petitioner in his statement clarified that Sarju Bai was Zamlndar and Babu Ram Dubey was his Mukhtar-E-Aam. Babu Ram had put his signature on behalf of Sarju Bai. He also stated that Sarju Bai had executed a written Power of Attorney which was on the record. The petitioner, however, did not file any document indicating as to what was the power of Babu Ram-Mukhtar-E-Aam. The contention of learned counsel for the respondent is that Section 5 of the U. P. Tenancy Act, 1939 provides that anything which is by the Act required or permitted to be done by land-holder, may be done by an agent of land-holder authorised by him in this behalf, and process served on, or notice given to, such agent shall be effectual for all purposes as if the same had been served on or given to the land-holder in person : and ail the provisions of this Act relating to the service of process on, or the giving of notice to, a party shall be applicable to the service of process on or the giving of notice to such agent. Respondent No. 3 also did not produce any evidence to show that Babu Ram was not Mukhtar-E-Aam of the Zamindar Smt. Sarju Bai and had no power to give the consent on behalf of the Zamindar.
12. Even assuming that there was no written consent of the landholder, still co-tenancy rights can be acquired by a person other than the mode prescribed under the proviso to sub-section (2) of Section 33 of U. P. Tenancy Act. 1939. The proviso provides two conditions whereby co-tenancy rights can accrue in favour of a person, firstly, the person who has been admitted as co-tenant from the commencement of the tenancy or secondly, where the landholder recognises such right in writing. This provision is not exhaustive and there are other modes by which co-tenancy rights can come into existence, e.g., the adverse possession, estoppel and acquiescence. This aspeet has been considered in detail in Doodh Nath Kori v. Smt. Dhamrajja, 1964 RD 324. The Court observed :
"The proviso must be read in the context of sub-section (2) of Section 23 and its scope should not be so extended as to embrace matters unrelated to and falling outside the object and purpose of the sub-section to which it was added. To do so would be to construe the proviso not as a proviso at all but as a separate and independent provision. A proviso may curtail or modify the scope of the substantive provision to which it is proviso but it cannot be interpreted as going outside the ambit of the substantive provision and as laying down the law on matters unconnected with and beyond the object of the substantive provision. The proviso to sub-section (2) of Section 23, therefore, cannot be regarded as rigidly limiting for all purposes the manner in which a person could have become a co-tenant and as excluding the possibility of his being a co-tenant for any purpose unless his case fell within the proviso. What is true of the proviso to Section 23 of Act III of 1926 is equally true of the proviso to Section 33 of Act XVII of 1939 and it is, therefore, unnecessary for me to say anything separately about it."
It was further held that the substantive rights can be created on the doctrine of estoppel and relied upon the decision of the Privy Council in Mercantile Bank of India Ltd. v. Central Bank of India. AIR 1938 PC 52. wherein the following observations were made ;
"Though estoppel is described as a mere rule of evidence, it may have the effect of creating substantive rights as against the person estopped. In estoppel, which enables a party as against another party to claim a right of property which in fact he does not possess is described as estoppel by negligence or by conduct or by representation or by holding out ostensible authority,"
It was further observed that the estoppel operates against the conduct of the tenant who has permitted a person to occupy the Sand as co-tenant but it will not be effective against the landholder. The doctrine of estoppel will be applicable as against the tenant who by his conduct permitted the other person to cultivate and occupy the land as a co-tenant and it is open to the land-holder to take appropriate action against the tenant or the person who has been admitted as co-tenant unless the landholder also likewise estopped from doing so. In case the landholder has not given any consent in writing to admit a person as co-tenant for such land as provided under the proviso to sub-section (2) of Section 33 of the U. P. Tenancy Act, it is open to him to take appropriate action against the tenant or the person so admitted as co-tenant but the tenant can not take the plea that as the landholder had not given the consent the person so admitted as co-tenant has no right of co-tenancy over such land.
13. in Bhagan Ram and another v. State of U. P. and others. 1967 RD 396, following the decision in Dudh Nath's case (supra), it was held that if the names of two co-tenants remain entered in the revenue records and the co-tenants or the heirs remained in joint possession of the land for over 18 years, they aquired co-tenancy rights by virtue of their names being recorded in the revenue papers for very long period and also possession. In Mewa Ram and others v. Shankar and others. 1970 ALJ 1019, it was held that if a person continues to be in possession for beyond the prescribed period, he in law, acquired co-tenure holder's right by adverse possession. This right can be acquired apart from Section 33 of the U. P. Tenancy Act as Section 33 is not exhaustive. Such rights can be acquired by acquiescence and estoppel also. The same view was taken in Dabu Singh and another v. Deputy Director of Consolidation and others. 1976 ALR 203 ; Mewa Ram and others v. Shankar and others. 1974 RD (Supp) 95 and Gaya Singh v. Deputy Director of Consolidation. Etah and others. AIR 1977 All 54.
14. Learned counsel for the respondent has submitted that the doctrine of estoppel applies only against the person who by his conduct makes representation to the other and on such representation the other party acts and acquires right on the basis of such estoppel but it will not extend to his heirs who were not bound by estoppel particularly when the widow Smt. Rani Duiaiya had only a life interest over the land in question.
15. It is submitted that Section 36 of U. P. Tenancy Act. 1939 provides that when a female inherited an interest in a holding as a widow, as a mother or as a daughter, dies or abandons such holding, surrender such holding or part of such holding or remarries, such holding or part of such holding shall devolve in accordance with the order of succession laid down in Section 35 on the heir of the last male tenant. Smt. Rani Duiaiya, it is submitted that she had life Interest in the land in dispute. Smt. Rani Duiaiya died in the year 1984 on the enforcement of U. P. Zamindari Abolition and Land Reforms Act, she became sirdar of the land in dispute under Section 19 of the said Act. This was a right conferred to the tenant who was holding the land prior to the enforcement of the Act. This right was a new right created under the Act. After her death the provisions of Section 36 of the U. P. Tenancy Act were not applicable. The succession will be governed by Section 174 as provided under the provisions of U. P. Z. A. and L. R. Act. The rights which have been created by estoppel in favour of a person by the tenure-holder by admitting another person as co-tenant, the doctrine of estoppel will also be applicable as against the heirs also. In Lal Singh v. State of U. P. and others. 1969 AWR 252, it was held that in so far as the effect of Section 33 (2) of the U. P. Tenancy Act is concerned, a male and female tenure-holder shall stand in the same category and if a male tenure-holder can admit a person as a co-tenant, the same can be done by a female tenure-holder and the co-tenant so admitted to tenancy shall have a lasting right enforceable even after the death of the widow. It was further held that while Interpreting the provisions of the tenancy laws the Courts of law shall not be justified to Introduce the concept the limited interest of the Hindu widow under the personal law. The Legislature has the power to lay down the mode of devolution of the agricultural land. Such rule can be different to that prevalent under the personal law. If the widow who had a limited right on inheritance under Section 36 of U. P. Tenancy Act, 1939 but by estoppel and acquiescence created a right in favour of a person by admitting him as co-tenant, such right is enforceable against the heirs of the widow.
16. Learned counsel for the respondent laid emphasis on various decisions wherein it was held that there cannot be estoppel against statute and no person can enforce his right on the basis of an agreement which is void and unenforceable in law. He has placed reliance upon the decision Vasant Kumar Radha Kishan Vora v. Board of Trustees of the Post of Bombay. AIR 1991 SC 14, wherein it was held that the principle of estoppel cannot be invoked if the transaction is void. In Khan Gul and another v. Lakkha Singh and another, AIR 1928 Lah 609. It was held that void contract cannot be legalised on the principle of estoppel. In Mahabir Singh v. Narai Tiwari and others, AIR 1931 All 490, it was held that the rule of estoppel cannol be invoked in a case where the claim is founded upon a document which is not enforceable under the Statute. In Prem Prakash v. Pt. Mohan lal, AIR 1943 Lah 268, it was held that if an agreement is found to be in contravention of Statute or against public policy, a party cannot be held estopped from pleading or proving facts which would render agreement void ab initio. In Sardar Nisar Ali Khan v. Mohd. Ali Khan, AIR 1932 PC 172, it was observed that during life time executant under the Will may be estopped from denying title by remainder but his son who enters into possession after father's death, cannot be affected by father's estoppel. In Smt. Parbati Kauer v. Sarangdhar Sinha and others. AIR 1960 SC 403. It was held that the decree passed only against the share of deceased widow, the claim of other coparceners in other joint family property, there cannot be estoppel against their claim. All these cases have no application to the facts of the present case.
17. Learned counsel for the respondent contended that the claim of the petitioner was based on the deed dated 7.7.1947 and there was no pleading of estoppel. The pleadings of the parties has to be examined considering the entire facts stated therein and evidence led in support thereof.
18. The claim of the petitioner is based on the fact that in 1947 Smt. Rani Dulaiya had admitted the petitioner as a co-tenant. The petitioner continued to cultivate and occupy the land jointly with her. He relied upon the deed dated 7.7.1947 as an evidence to prove this fact. The revenue entries also supported the version of the petitioner that he was in possession over the land in dispute and was recorded as co-tenant since 1355-F. Such entry continued for the last 36 years. Smt. Rani Dulaiya during her life time never objected to such entry. She was widow and the petitioner was brother of her husband. Smt. Chukharia-respondent No. 3 was her daughter. The trial court relied upon the documentary and oral evidence and came to the conclusion that the petitioner was jointly cultivating the land with her. It was proved by him that Smt. Rani Dulaiya had executed the deed dated 7.7.1947 wherein she admitted that the petitioner had been admitted as co-tenant of the land in dispute. The Additional Commissioner, in appeal, did not reverse this finding. The Additional Commissioner took the view that the petitioner failed to prove that Smt. Chukharia was aware of the agreement from the very beginning and in absence of such proof, the petitioner cannot enforce the right on the principle of estoppel against her. The view of the Addl. Commissioner was erroneous. As held above that tenancy rights can be acquired by estoppel and once the right is created the heirs of the deceased widow would be bound by such rights. The Board of Revenue in second appeal took a different ground. The Board of Revenue took the view that the contents of the agreement were not proved. It did not take into consideration the finding recorded by the trial court about the long standing entries in favour of the petitioner and his possession over the Land in dispute. Smt. Rani Dulaiya had died in the year 1984 long after the enforcement of U. P. Zamindari Abolition and Land Reforms Act. As the Additional Commissioner and Board of Revenue have not considered about the entries in the revenue record and the finding of the trial court regarding possession of the petitioner over the land in dispute, it would be appropriate that the matter may be examined on this aspect by the Additional Commissioner.
19. In view of the above discussions the writ petition is allowed and the judgments of the Additional Commissioner dated 30.3.1990 and of the Board of Revenue dated 30.6.1992, are hereby quashed. The matter shall now be considered by the Additional Commissioner afresh keeping in view the observations made above and in accordance with law.
20. In the facts and circumstances of the case the parties shall, however, bear their own costs.